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[2012] ZAECPEHC 62
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Avenant v Els (235/2011) [2012] ZAECPEHC 62 (6 September 2012)
9
NOT REPORTABLE
IN THE
HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE, PORT ELIZABETH)
Case no:
235/2011
Date
heard: 30 August 2012
Date
delivered: 6 September 2012
In the
matter between
A.P.
AVENANT
..............................................................................................
Plaintiff
vs
SHEILA
ELS
..............................................................................................
Defendant
JUDGMENT
PICKERING
J
:
This is an action for damages arising out of a collision which
occurred on 12 May 2010 on the Main Road, Despatch, between
plaintiff’s
Chevrolet Lumina SS Ute (“the Lumina”)
bearing the ironically apt nickname of “Moeilikheid”
emblazoned
on its rear and which at the time was being driven by
plaintiff’s wife, Mrs. Avenant, and a Volkswagen Polo which at
the
time was being driven by the defendant. Alleging that the
collision was due solely to the negligence of the defendant the
plaintiff
claimed damages in the sum of R305 000,00 being the
pre-accident market value of the Lumina which was damaged beyond
repair in
consequence of the collision.
At the commencement of the trial the parties were agreed that the
quantum of plaintiff’s claim was indeed R305 000,00,
the
only issue therefore being that of the respective degrees of
negligence, if any, of Mrs. Avenant and the defendant. The parties
were further agreed, in the light of the fact of the Lumina having
been driven by Mrs. Avenant, that in order to succeed in his
claim
plaintiff needed to establish no more than that defendant was to some
extent contributorily negligent in relation to the
collision.
Main Road, Despatch, runs approximately from west to east. It is
divided into four lanes, two for traffic proceeding in an easterly
direction and two for traffic proceeding in a westerly direction. The
east bound and west bound lanes are divided from each other
by a
solid white centre line. To the west of the point where the collision
occurred there is a dip in the main road which thereby
creates a
blind rise for traffic proceeding from west to east. The crest of
this blind rise is approximately 215 metres from the
place where the
collision occurred. A motorist east of the dip at the place where the
collision occurred would therefore not be
able to observe any motor
vehicle approaching from behind until such time as that motor vehicle
had crested the rise 215 metres
away. From the crest of the rise the
road is flat up until the point of the collision. It is common cause
that the speed limit
applicable to Main Road is 60 kilometres per
hour.
Mrs. Avenant testified that the collision occurred at approximately
13h45. The day was clear and sunny and the road was dry. Visibility
was excellent. The Lumina was in good condition with its ABS brakes
in perfect working order. It was a very powerful motor vehicle
but
she knew how it handled and knew that it was capable of stopping fast
if required. She stated that she was travelling at the
time at
approximately 65 km per hour or slightly less. She knew this because,
just before reaching the dip in the road, she had
glanced at her
speedometer. She had done so because she was concerned about the fact
that accidents were known to occur on that
stretch of road and also
about the possible presence of traffic police. She stated that
although she did at times travel in the
Lumina at 160km per hour on
the open road she tried not to exceed the speed limit in built up
areas.
She stated further that when she came over the crest of the blind
rise she saw defendant’s Polo motor vehicle on the left
hand
side of the road at a distance which she estimated as being
approximately 100 metres from her own motor vehicle. She conceded,
however, that that distance was in fact 200 metres. She stated that
the Polo came out of the parking area on the left side of the
road
and entered the first lane of the east bound carriageway. She watched
it as it drove ahead of her in that lane. When she was
approximately
75 metres away from it, it looked, in her words, as though it was in
the process of turning into the second lane
in which she herself was
travelling. As she put it, she saw the Polo looking to turn into her
lane and thought it wanted to turn.
At that point its indicators were
not on nor was any other signal given to the effect that it intended
to cross into her line of
travel. She then said that she was in fact
approximately 60 metres and not 75 metres from the Polo when this
occurred. According
to her she decided to overtake the Polo and she
then drove the Lumina across the white centre line into the first
west bound lane.
As she did so, she, in her words, put her foot down,
and increased speed in order to overtake the Polo. She stated that
she could
not overtake the Polo on the left because the Polo was at
that stage straddling the two east bound lanes. At the time that she
swerved into the first west bound lane it was empty. The Polo,
however, kept turning and she was forced to move into the second
west
bound lane. Despite this, however, she was unable to avoid the
collision which occurred in the second west bound lane. She
stated
that in effect the Polo drove into the Lumina and hit it just behind
the left hand door. She lost control of the Lumina
which veered
towards the right hand parking area where its right front wheel
struck the kerb. It then veered back across the road
to the left hand
side parking area where it collided with another vehicle and then hit
a wall.
A police plan (Exhibit D) which indicated the point of impact as
being close to the centre line on the defendant’s correct
side
of the road was put to her under cross-examination by Mr. Cowley who
appeared for the defendant. She stated that she had never
told the
police where the point of impact was but, with regard to the point of
impact indicated on Exhibit D, she stated “
dit kan wees of
dit kan nie wees nie
.” Questioned further as to how that
point could be the point of impact in the light of her previous
evidence that the point
of impact was in the fourth lane she stated
that she was confused and that it was difficult for her to understand
the plan.
She reiterated that she was travelling at no more than 65 km per hour
and denied that she had been travelling at an excessive speed.
She
was questioned under cross examination as to why, if she was indeed
travelling at a speed of only 65km per hour, she had not
braked in
order to avoid the collision. Her answer was “
ek kon seker
maar het nie.
” It was put to her that at a speed of 65 km
per hour she could have brought her motor vehicle to a stop within 28
metres.
She could not deny this. It was further put to her that even
taking into account a reaction time of one second she could still
have stopped her motor vehicle within 45 metres. Whilst she conceded
that this was so she averred that she would in any event have
collided with the Polo, albeit that, on her version, the Polo was at
least 60 if not 75 metres ahead of her. It was again put to
her that
the collision occurred because she was travelling too fast to which
she replied that she “
did not know
”. She stated
that it had appeared logical to her in the circumstances, given that
she was driving a powerful motor vehicle,
to overtake the Polo. She
then stated that she had not thought at all of stopping. She conceded
that she had had ample opportunity
over the distance of 200 metres to
observe the Polo and to regulate her driving accordingly but she
again reiterated that she had
not thought of braking and that she had
felt that her best option was to overtake the Polo. It was put to her
by Mr. Cowley that
she could have avoided the collision simply by
applying the brakes of the motor vehicle to which she stated “
dan
is dit seker so.
” She then stated that she did not have a
lot of time to think; she wasn’t aware of how much distance was
required for
her to stop the Lumina; and she was not certain that if
she had applied her brakes she would have avoided the collision. That
then
was the evidence for plaintiff.
The defendant, Mrs. Els, testified that she is a 69 year old widow.
On the day in question she was the driver of the Polo. She
had
visited a friend in Despatch and wanted to return to Uitenhage where
she was staying. From her friend’s house she had
entered Main
Road in an east bound direction which was the opposite direction to
that in which she wished to travel. Because of
the solid centre line
in Main Road she was somewhat confused as to how she could get into
the west bound lanes of Main Road. She
accordingly pulled into a
parking area to the left of the road. She sat there and observed what
other motorists were doing. She
noticed that some motorists performed
u-turns across the solid centre line or crossed the line in order to
enter their driveways
on either side of the road. She then decided to
perform a u-turn herself so as to enter the west bound lanes of the
road. She put
on the indicator of the Polo to indicate her intention
to turn to the right. When she saw that the road was clear of traffic
both
in front of and behind her vehicle she entered the road and
crossed slowly from the first lane into the second lane. In the
second
lane she looked in her rear view mirror and checked to see if
the road was still clear which it was. She was in the process of
commencing a slow turn to the right and was slightly over the centre
line or slightly on her correct side thereof when she suddenly
felt
what she described as being a bump. After that she recalled nothing
until she found herself gripping the steering wheel of
her vehicle
which was facing at right angles across the road. She stated that
prior to the collision she had not seen the Lumina
at all.
Mr. Van Wyk, a resident of Despatch, testified that on the day in
question he was proceeding in his bakkie from the hardware shop
in an
easterly direction along Main Road. He was travelling in the left
hand lane at a speed of between 60 – 65 km per hour.
At some
point, before he reached the dip in the road, he was overtaken by the
Lumina which was travelling at a very high speed,
so much so that he
thought to himself that the driver must be crazy. He estimated the
speed of the Lumina as being at least 120
km per hour. It disappeared
from his sight. He continued on for a distance of approximately 800
metres where he came upon the scene
of the accident. He did not know
either driver.
Mr. Pretorius, a director of a company known as Crash, Data,
Forensics (Pty) Ltd, and who is a specialist in traffic accident
reconstruction, testified that the damage occasioned to defendant’s
Polo motor vehicle, as depicted on the various photographs
handed
into Court, indicated that the Polo was not struck while it was
perpendicular to the Lumina but was rather facing the same
general
direction as the Lumina, this being consistent with the evidence of
the defendant to the effect that she had just commenced
turning right
when the collision occurred. After the collision the Lumina travelled
69 metres to its final resting place. According
to Mr. Pretorius’
calculations, which were not challenged under cross examination, the
Lumina was travelling at a speed of
at least 102km per hour at the
time of impact. He stated further that his calculations were based on
the assumption that the point
of impact occurred at or near the
centre line. Even if the point of impact were to be moved to the
position indicated by Mrs. Avenant
there would be a negligible
difference.
He stated that had Mrs. Avenant been travelling at a speed of 65 km
per hour she would have required 28 metres to bring her vehicle
to a
stop. At 102km per hour she would have required 65 metres to stop. If
a reaction time of one second were to be factored in
then, at a speed
of 65km per hour, a distance of 45 metres would have been needed to
stop and, at a speed of 102km per hour, a
distance of 94,7 metres. In
these circumstances, had Mrs. Avenant decided to brake whilst
travelling at a speed of 65km per hour,
there would have clearly been
sufficient time and distance for her to bring her vehicle safely to a
stop.
Mrs. Avenant was, in my view, an extremely poor witness. Apart from
being deliberately dishonest in one respect, an aspect to which
I
will return hereunder, her evidence was on material aspects evasive,
contradictory and improbable. Mrs. Els, on the other hand,
made a
very favourable impression upon me as an entirely honest witness. I
am satisfied that her evidence to the effect that she
had indicated
her intention to turn to the right on entering Main Road can be
accepted. Apart from being a patently honest witness
she was also, as
appears from her evidence, a careful driver, so much so that she was
concerned as to whether she could cross the
solid centre line and
only decided to do so after observing other motorists executing
u-turns or crossing the line in order to
enter their drive ways on
the opposite side of the road. Her evidence in this regard was not
challenged at all. It is quite improbable
that so cautious a driver
would not have put on her motor vehicle’s indicator and I
reject the evidence of Mrs. Avenant to
the contrary.
Mr. Van Wyk was also an excellent witness who was entirely
independent. Indeed, Mr. Moorhouse, who appeared for plaintiff, did
not seek to impugn his credibility in any way nor was there any basis
upon which he could have done so. It is clear that he had
no motive
whatsoever to fabricate evidence concerning the incident.
The evidence of Mr. Pretorius was not seriously challenged under
cross-examination and can safely be accepted. His evidence
establishes
that at the time of the collision plaintiff’s motor
vehicle was travelling at at least 102km per hour. Mr. Moorhouse
submitted
that this evidence was, however, entirely consistent with
the evidence of Mrs. Avenant to the effect that she had accelerated
in
an attempt to overtake the Polo. Whilst that may be so it is
equally consistent with the evidence of Mr. Van Wyk as to the
excessive
speed at which plaintiff’s motor vehicle was
travelling when it overtook him and disappeared from sight a mere 800
metres
from the point of the collision. His evidence, which I accept,
gives the lie to the evidence of Mrs. Avenant that she was travelling
at no more than 65 km per hour prior to the collision and that she
had accelerated in order to overtake the Polo when confronted
with
what was in effect a sudden emergency.
Apart from her evidence as to her speed being contradicted by the
evidence of Mr. Van Wyk that evidence is, in my view, utterly
improbable. She was quite unable to furnish a rational explanation as
to why, if she was only travelling at 65km per hour, she
had been
unable to avoid the collision by braking. At that speed she would
have had ample opportunity to observe the Polo and to
bring the
Lumina safely to a stop. If she was indeed travelling at a speed of
65km per hour then her actions were inexplicable.
She was eventually
forced to concede that she had not even thought of braking. Her
evidence as to the position of the point of
impact is also quite
improbable. The evidence of Mr. Pretorius established that at the
time of the collision the Polo was facing
the same general direction
as the Lumina thus indicating that the Polo had just commenced its
turn to the right as testified to
by Mrs. Els. It is utterly
improbable that Mrs. Els would have driven into the first of the west
bound lanes whilst still proceeding
in an easterly direction and
would have only commenced her u-turn on reaching the second west
bound lane.
Once the finding is made, as it has to be, that Mrs. Avenant was
lying on the material issue of the speed of her motor vehicle
then
the entire edifice of her version comes tumbling down. Her version as
to how the collision occurred can, in the circumstances,
not be true.
The probabilities, in my view, are overwhelmingly to the effect that
because of the excessively high speed at which
she was travelling in
contravention of the speed limit of 60km per hour she was unable to
stop the Lumina on being confronted by
the Polo in her lane, close to
or slightly over the middle line, and was accordingly obliged to take
the only evasive action which
she could, namely, to cross the middle
line in an attempt to overtake the Polo on its right. In driving in
this manner she was,
in my view, grossly negligent if not reckless.
The only question which then remains is whether or not defendant was
to any degree contributorily negligent. In my view she clearly
was
not. It is so, as was submitted by Mr. Moorhouse, that a motorist
intending to execute an inherently dangerous manoeuvre such
as a
u-turn is obliged to keep a proper lookout for traffic proceeding in
both directions and to execute the turn only at an opportune
time.
Mr. Moorhouse submitted that Mrs. Els had failed in this regard and
that she had furnished no acceptable explanation as to
why she had
not seen the approach of the Lumina. I disagree.
It must be borne in mind that the collision did not occur on an open
road or highway on which it could be expected that motor vehicles
would be travelling at high speeds. The collision occurred on a
suburban road governed by a speed limit of 60km per hour and at
a
place where any motorist approaching from behind defendant’s
motor vehicle would have had ample time and opportunity to
observe
her motor vehicle and to regulate their conduct accordingly.
In my view defendant, who had satisfied herself that the road behind
her was clear at the time that she entered the second lane
of the
east bound carriageway, did not have to anticipate the approach of a
motor vehicle from the rear at a speed more than 40km
per hour in
excess of the speed limit and that that motor vehicle would then
overtake her across the solid centre line despite
the fact that she
was indicating her own intention to turn to the right. In any event,
even if she had seen the Lumina immediately
prior to the collision it
would in the prevailing circumstances have been too late for her to
have taken any evasive action.
In my view therefore plaintiff has failed to establish any
contributory negligence on the part of the defendant and the
plaintiff’s
claim falls to be dismissed.
Mr. Moorhouse conceded that whatever the outcome of the action the
plaintiff was liable for the wasted costs occasioned by the
postponement of the matter on the first day of the trial due to the
failure of plaintiff to have arranged for the services of an
interpreter. As to the costs of the second day there is no reason why
those costs should not follow the result.
Accordingly the plaintiff’s claim is dismissed with costs.
__________________
J.D. PICKERING
JUDGE OF THE HIGH COURT
Appearing on behalf of Plaintiff: Adv. Moorhouse
Instructed by: Kuban Chetty Attorneys, Mr. Naidoo
Appearing on behalf of Defendant: Adv. Cowley
Instructed by: Heine Ungerer Attorneys, Mr. Ungerer